Principle of Constitutional Loyalty: Embedding Constitution in the Society. The Role of the Constitutional Court

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1 Principle of Constitutional Loyalty: Embedding Constitution in the Society. The Role of the Constitutional Court Aldis Lavins, President of the Constitutional Court of Latvia Highly esteemed Mr. Tănase, Highly esteemed Mr. Buquicchio, Honorable judges, participants, dear colleagues, First of all on behalf of the Latvian Constitutional Court I would like to congratulate Republic of Moldova and its Constitutional Court on occasion of 20th anniversary of the Constitution. As well I would like to express my deep gratitude for the possibility to be here, to enjoy your warm hospitality and to give my presentation alongside the outstanding participants of this conference. In my presentation I ll examine the principle of Constitutional Loyalty from the point of the Constitutional Court. I ll briefly outline the way in which the Constitutional Court, in applying exactly the principle of constitutional loyalty, implements the Constitution in a particular society and under particular social economic and political circumstances. The Constitutional Court is not the only one implementing the Constitution. Every branch of power, every institution and also persons can be important in this. Before I narrow my topic down to only one embedder - the Constitutional Court, I ll briefly: first, explain what embedding Constitution in the Society means; second, outline the content of the principle of constitutional loyalty. The Constitution is embedded in society by implementing the real norms of the Constitution and the principles that follow from it in a particular society. In this process the following should be taken into consideration: - first, the text of the Constitution (concrete norms); - secondly, principles and values (not always defined in the Constitution expressis verbis)', - thirdly, the society, in which the Constitution operates - its history, culture, traditions and the social political and economic circumstances of the particular period, as well as, - who is performing this embedding in the particular case. As regards the understanding of principle of constitutional loyalty numerous aspects should be mentioned. Firstly, some scholars have emphasized that it is a valuable principle of all constitutions without which a constitution cannot work properly. It is a pre-condition for the effectiveness of

2 the Constitution. The constitutions of some countries directly provide the duty to be loyal to one s state, nation, and the Constitution. The duty to be loyal to the Constitution applies to all - citizens, officials, institutions and branches of power. With regard to citizens, the duty of loyalty has a narrow scope. An opinion exists that for the state institutions and officials the constitutional loyalty is an obligation, but for citizens - it is a right. In this context, my colleague - the former President of the Constitutional Court Gunărs Kütris,has noted that everybody should respect the Constitution that we have adopted for ourselves. It is precondition that we - our state and nation - could live happily and develop. This is the way how the Constitution ensures to us the possibility to plan our future. Therefore, respecting the Constitution is also everybody s obligation to one s own future. As to institutions, it is natural to expect that the justices of the Constitutional Court, in performing their functions, are loyal to the Constitution, as they have the task to safeguard it. However, does the fact that other institutions and officials do not have the direct duty to guard Constitution mean that they may be disloyal? Answer is - all the state institutions should be loyal to the Constitution. This loyalty requirement derives from: - obligations of officials; - oaths (it does not matter whether the oath contains a promise to observe Constitution or to safeguard Constitution ); - principle of the separation of power; - principle of constitutional supremacy. At the same time, the Constitution itself permits a certain exception to the principle of loyalty, it relates to amendments to the Constitution. The elaboration of amendments to the Constitution, in a certain sense, is contrary to the existing Constitution (at the first glance that seems disloyal action ). However, the amendments, as of the moment they have been adopted in accordance with the procedure set out in the Constitution, which includes also certain requirements regarding the content of amendments, are compatible with the Constitution. The restrictions regarding the content are linked with the ensuring of the principle of constitutional stability, which at the beginning of this year were discussed by our Lithuanian colleagues assessing amendments to the Constitution. So the main conclusion is - amendments change the text of the Constitution, but the loyalty requirement remains. According to one of the greatest of the ancient philosophers Aristotle - it is enough to have loyalty to the constitution for the constitution to function in reality and for ensuring its

3 supremacy. Today, because of different understanding of - what loyalty is, -what kind of action requires and -what restrictions imposes, as well as -different degrees of willingness to be loyal, an additional mechanism is needed: l)to ensure the implementation and supremacy of the Constitution, as well as, 2) to control constitutional loyalty. Nowadays this task is usually done by the Constitutional Court. Now let s move to the most important issue - what the Constitutional Court does in this respect. The social political life changes. Speaking about Latvia, during the lifetime of Latvian Constitution, which is more than ninety years old(it is one of the oldest constitutions in Europe), changes have occurred both: 1) in the life of the state and 2) in the understanding of constitutional concepts and principles. This could raise a question regarding the conformity of the Constitution with the legal reality. A wisely and responsibly written constitution from one side, and the political economic situation and social legal reality, from other side, influences and shapes each other. The Constitutional Court balances these influences and also reveals the development of the content of the Constitution over time, it demonstrates the completeness of the Constitution - implements the Constitution in the particular environment, under the particular circumstances. The authority of the Court is based upon the authority of the Constitution, / and the Court, in its turn, strengthens the Constitution with its decisions. The Constitutional Court, in exercising its duties, openly demonstrates its loyalty to the Constitution and at the same time, directly or indirectly, demands it from others. The Latvian Constitutional Court has discussed loyalty to: - the state, - to the Constitution and - to democratic order of the state in a number of its rulings, (1) justifying restrictions of rights or (2) demanding particularactions by the state. The Latvian Constitutional Court, like other courts, has derived the constitutional

4 duties of institutions and officials from the principle of the separation of powers. The Court has repeatedly noted in its rulings that in a democratic state the principle of the separation of powers not only differentiates various branches of power, but also contains the requirement regarding their cooperation, since the aim of all branches of power is the strengthening of democracy in the interests of the people. Therefore, the principle of loyalty applies to any action taken by any branch of power. The Constitutional Court has developed ultra vires constitutional doctrine, which comprises the requirement to the Cabinet of Ministers not only to abide by the mandate of the legislator, but also to abide by the Constitution and its principles. In the case regarding the compliance of the law on national referendums with the Constitution, containing a dispute regarding procedural issues in connection with a draft law submitted by voters, the Constitutional Court: - specified the scope of the President of the State constitutional loyalty, and - revealed the presumption of loyalty following from the Constitution with regard to those exercising the state power. The Court pointed out that the exercise of the state power is based upon the presumption that all state institutions comply with the Constitution and its jurisdiction, and also duly fulfil their duties. In a democratic state governed by the rule of law all institutions of state power have the duty to abide by the norms and principles of the Constitution. Moreover, whenever state institutions apply the law, it is subject to the control by the judicial power, which guarantees application of legal norms in conformity with the Constitution. However, the connection of the principle of loyalty with the embedding of the Constitution is most precisely reflected in the relationship between the legislator and the judicial power, analyzed in the case law of the Constitutional Court. In the first case regarding the decrease of judges salaries, the Constitutional Court not only noted the requirement that follows from the principle of the separation of power - that the branches of power should cooperate for shared aim - strengthening of democracy in the interests of people, but also developed the loyalty principle further. The obligation to hear the judicial power, when dealing with issues essential for it functioning, as well as treating it with respectand true understanding, is directly linked with the requirement of loyalty. The relationship between politics and judges is constantly changing. At the time, when, possibly, the actions by one branch of power have become too aggressive and unsubstantiated, the Constitutional Court had to remind it of its loyalty duty and specify the actions and

5 restrictions following from it. Thus, responding to actions and decisions by concrete institutions, the Constitutional Court has revealed the content of the loyalty principle and embedded the Constitution in the actual and social legal circumstances. The Court repeatedly pointed to the requirement of loyal attitude also in a later case regarding the decrease of judges salaries. In this ruling the Constitutional Court specified the requirement regarding the cooperation between branches of power, noting that the most appropriate and effective way for solving the problems of remuneration could be cooperation between the legislator and the Judicial Council within the scope of their competence. The interaction between the legislator and the institution representing the judicial power - the Judicial Council - should be aimed at strengthening the democracy and the functioning of a judicial state, as well as ensuring, as effectively as possible, the right to a fair court. This points to the loyalty both as a precondition for an effective cooperation between the branches of power, as well as a principle that helps to implement the Constitution. Dear participants! We are all aware of the value of the Constitution of the state - it provides peace and stability to our nations. Today, perhaps - more than ever before, we appreciate the possibility to live in peace and stability. I wish for all Ukrainians to live in peace and free of war world. So, perhaps, it is of special relevance today that everybody should respect the values ensured by the Constitution of each particular state. The respect of compliance with the Constitution characterizes its importance in society. I d like to see this not as an obligation, but the honor for every citizen and every institution - to comply with, to respect and to defend the Constitution, to be loyal to it.